Judges rule that grocery store needs more parking

A Mexican grocery store in San Juan Capistrano may have to close, because city officials allowed it to open despite a lack of adequate parking.

A state appellate court ruled last week the city “abused its discretion” when officials issued a building permit for Mercado El Rey, 32252 Camino Capistrano, in April 2011.

The store opened in late 2011 where Society of St. Vincent de Paul had operated a thrift store. Constructed in 1973, the building began as a 3,140-square-foot space with 13 parking spaces. St. Vincent's added about 1,500 square feet in storage space, along with other expansions in 1982 and 1991. But it didn't add more parking spaces because the expansions weren't considered retail space. Dove Capistrano LLC now owns the building.

“The required parking formula for general retail uses has never changed,” according to the 28-page opinion issued Dec. 23 by Division 3 of the 4th Appellate District. “What has changed is what Dove Capistrano claims to be the size of the building.”

City code requires grocery stores like Mercado offer at least one parking space for every 200 feet of retail space. So when the city allowed Mercado to open in a 4,641-square-foot space with 13 parking spaces instead of the 24 required, a neighboring property owner objected.

Dan Friess, owner of Friess Property Investments, appealed the Planning Commission's approval of the store in May 2011, which prompted commissioners to overturn their decision and deny the permits. But representatives of Dove Capistrano and Mercado appealed to the City Council, and the council approved the building permit on Sept. 6, 2011. The store opened shortly thereafter.

Friess sued, and Orange County Superior Court Judge Larry Brown sided with him. Now the ruling from the appellate court reiterates Brown's decision and calls for city officials to revoke Mercado's building permit.

That hasn't happened yet, and the store remains open. Employees said they have no plans to close and directed questions to lawyer Laura Hess, who was not immediately available for comment.

Store officials had argued they should be allowed to continue operating, even if they are violating the city's parking code, because the thrift store had long violated the parking ordinance, too. The appellate judges rejected that.

“But Dove Capistrano cites no case, and we have found none, that has held a legal nonconforming use arises from anything other than a change in applicable zoning laws,” the ruling read.

The court reviewed minutes from the 1982 Planning Commission hearing regarding the building's expansion, noting that the projects were approved as something that wouldn't increase the building's retail space.

Mercado representatives have suggested the only way to comply with the Superior Court ruling is to tear down the building. Appellate court judges Kathleen O'Leary, Richard Fybel and David Thompson said that isn't the case: The store can seek permission from the city to operate without meeting the parking code – or just not use the extra 1,500 feet of space.

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